Unjustifiable Means

by Mark Fallon

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  By that point, EITs were already established practice in the CIA. That summer, Abu Zubaydah had served as their test case. Dunlavey was essentially using al-Qahtani as a test case for harsh interrogation of detainees within the DOD. But even with all the support he’d received up to that point, it would be easier to move forward with the Category III tactics on al-Qahtani if there was evidence within the military that such techniques were already in use. So in order to bolster the efficacy arguments for SERE techniques at Guantanamo, CENTCOM sent a list of interrogation techniques they had been using at the Bagram collection point in Afghanistan. The list was meant to portray tactics at Gitmo as already widespread in use, as well as necessary and effective.

  They had it backward, though. The techniques being used by the CENTCOM Special Mission Unit in Afghanistan were actually adopted when SMU personnel from Afghanistan had visited Guantanamo in October. The SMU came to Gitmo immediately following JTF-170’s SERE training at Fort Bragg and XXX XXX XXXXX XXXX XXXXXXXX XXXXXXX. At the Battle Lab, the Afghanistan-based task force learned what techniques were going to be used by interrogators at Gitmo.

  Without authorization, the SMU had gone back to Afghanistan and proposed the use of strip searches for degradation purposes, sensory deprivation, dogs, and environmental manipulation through “cold, heat, wet, discomfort, etc.” With their training received at Guantanamo, the SMU had also advocated for “psychological/physical stress” and “psychological deception leading to learned helplessness and increased compliance.” But, though they learned the techniques at Gitmo, the interrogators in Afghanistan had more fully adopted the untested SERE tactics first.

  Seligman’s theory was spreading in a sort of torture Ponzi scheme. Interrogation teams at both Guantanamo and Bagram Airfield were each using the other’s actions to justify the use of SERE tactics. Both sides were promising a high return on investment with little risk.

  There was, however, enormous risk. These abuses sometimes became fatal. In late November 2002, an Afghan named Gul Rahman died of exposure while in CIA custody in Kabul after being left chained to a wall in nearly freezing temperature overnight. A few weeks later, in early December, a twenty-two-year-old taxi driver, known only by the name Dilawar, and the brother of a Taliban leader, Mullah Habibullah, had been killed in the custody of their military captors in Bagram. Both had severe blunt-force trauma on the back of their legs from repeated blows from US soldiers while in custody. Even after military medical examiners had ruled the two deaths homicides and autopsies had confirmed that the repeated blows to the legs had caused both men’s hearts to cease functioning, US military general officers were telling the media there were no indications of abuse by soldiers.

  We were killing detainees in Afghanistan. I was concerned we would kill al-Qahtani at Gitmo as well.

  CHAPTER 9

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  PROTECT YOUR CLIENT

  By December 2002 Dave Brant had had enough and decided to see what he could do personally with the echelon of military lawyers. He contacted Alberto Mora, the navy general counsel.

  “I’m receiving reports of detainee abuse at Gitmo,” Dave said. “Do you want to hear more?” Dave knew the Pentagon landscape well. This wasn’t technically a navy issue. Mora didn’t have to listen. And once he knew what was going on, he could be found culpable if he chose to ignore it. Dave wanted to give Mora a way out. But Mora asked for the details.

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  Brant’s call piqued Mora’s interest, so the next day, Ralph Blincoe, Mike Gelles, and I went to see the top navy lawyer in his Pentagon office. The distinguished-looking Mora showed us back past his large mahogany desk to a tiny conference room that was soon crammed with some of the top lawyers in the marines and navy.

  We had brought the logs of al-Qahtani’s abuse, as well as Diane Beaver’s memos. As I got into her assertions, I saw heads shaking and eyebrows rise. They thought it was the result of renegade low-level amateurs. Who tries to get actionable intelligence by having a detainee wear women’s underwear? Gelles then described the coercive psychological exploitation that was the basis of the EIT program. Mora and the other lawyers in the room sat silently. I wondered what would come next. I had grown so used to everyone saying, “I agree with you, but not at the cost of my job.”

  Instead Mora cut to the chase: “We’ve got to do something about this. This is the worst piece of legalese I’ve ever seen.”

  He turned to me. “Did you explain to them what your background is? That this sort of work is what you’ve been doing for years?”

  “Mr. Mora, I’ve been running this task force since its inception—they know. I’ve tried to explain this. I just have been unsuccessful in getting anyone to take any action. No one disagrees with me, but no one will do anything because Rumsfeld says you can do this.”

  First, Mora asked me to go down to Gitmo one more time and see if I could reason with Miller. I understood the implication. If Mora actually pursued this case, he’d practically be falling on his sword. He was appointed by President Bush and slotted to likely become either general counsel to the CIA or general counsel to the NSA. He might be giving all that up to back me.

  “You got it,” I said.

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  On December 19, 2002, Mora met with Army General Counsel Steven Morello and Army Deputy General Counsel Tom Taylor. He thought these issues must have been misunderstood or not fully communicated.

  Morello told him otherwise and showed him the chain of documents, from Dunlavey’s original request through SOUTHCOM to the action memo from DOD General Counsel Jim Haynes authorizing the SERE tactics, which Rumsfeld had signed.

  “Haynes must not have fully read that,” said Mora.

  “We tried to stop it,” said Morello. “We were told not to question the decision.”

  In the military, such a response from higher authority is generally enough to shut down a query, but Mora had no intention of letting the chain of command stop him.

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  Following his meeting with Morello, Mora reviewed the December 2 request for enhanced techniques. Because the request had gone up the army chain of command, not the navy one, it had never crossed Mora’s desk previously. Mora later wrote a letter to the navy inspector general, in which he wrote, “I regarded the memo as a wholly inadequate analysis of the law and a poor treatment of this difficult and highly sensitive issue.” Even if the techniques didn’t meet some high-bar definition of torture, he added, they were clearly illegal as cruel and inhuman treatment.

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  On December 20 Mora went to see Jim Haynes to convey his concerns and objections. Mora told Haynes that NCIS had advised him of Guantanamo detainee interrogation abuses and that NCIS considered abuses to be unlawful and contrary to American values. Mora told Haynes the techniques authorized in Rumsfeld’s memo could rise to the level of torture.

  “I have to disagree,” replied Haynes.

  Mora replied that Beaver’s legal brief justifying the interrogation tactics was “an incompetent product of legal analysis” and urged Haynes not to rely on it.

  Mora also brought to Haynes’s attention Rumsfeld’s handwritten note about how standing for more than four hours seemed appropriate. Mora argued such a comment could be interpreted as “a coded message” to interrogators “that they should not feel bound by the limits set in the memo but consider themselves authorized to do what was necessary to obtain the necessary information.” It could open up Rumsfeld to be called as a witness at trials before military commissions. Once there, defense lawyers could ask the secretary of defense, under oath, to describe the abusive tactics he had approved to be used on their clients. It would be, at best, a horrible embarrassment for the administration.

  Mora walked out of Haynes’s office confident he had made his point. It had been a nasty mix-up, but with all the facts now in front of Haynes, Mora couldn’t imagine the Pentagon lawyer wouldn’t do his job. Haynes would seek to correct the mistakes and suspend the authority to apply the EITs within the defense department. Pleased that the future at Gitmo would at least be better than the past, Mora flew to Miami to spend Christmas with his family.

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  Day after day, it had become clear that the SERE techniques were still not working, so two navy SERE instructors, John Rankin and Christopher Ross, flew to Guantanamo to train JTF-GTMO in yet more exploitation techniques. Neither of the instructors had any experience relevant to interrogations. Nonetheless, they taught the questioners at Gitmo how to apply physical pressures, such as insult slaps, walling, and stress positions. They also included the psychological pressures from Biderman’s principles—the ones Chinese and North Korean communists had used to elicit false confessions.

  The techniques apparently worked. XX XXXXXXXX XX XXXXXXXXXX XXXXXX XXXX XXX XXX XXXXXXX XXX XXXXXXXXX XX XXXXXXX XX XXX XXXXXXXXX This was in keeping with Albert Biderman’s 1957 observation that the real psychological stressors occur when the exploited person believes he is bringing the torture on himself. Following their visit with SERE psychologist Morgan Banks at Fort Bragg, Burney and XXXX had described such techniques as “extremely effective,” but “Effective at what?” remained the question.

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  There was one significant effect, though, of all this concentrated detainee abuse: The odds of us ever bringing al-Qahtani to trial in the courtroom being built for military hearings were naught. His abuse at the hands of government interrogators could be used as
discoverable material in any defense of him, or in a case against interrogators, psychologists, or the general who ordered it.

  On January 6, Brant informed Alberto Mora that detainee abuse was continuing and that Rumsfeld’s authorization remained in effect. Clearly, Haynes hadn’t urged Rumsfeld to revoke the authorization for EITs, but Haynes had also underestimated the man who had encouraged him to do so. Mora’s mother had fled Nazi Hungary in 1941. Her family moved to Boston, where she met Mora’s dad, and Alberto was born in 1951. The family moved to Cuba, where they lived for eight years until they fled the Castro revolution. Twice in as many decades, his family had been forced to flee political violence and repression. With a history like that, Mora wasn’t inclined to back down in the face of a Pentagon lawyer, even a highly placed one.

  Two days after Dave Brant alerted him to the continued detainee abuse, Alberto Mora relaunched his one-person crusade, meeting with Jaymie Duran, a special assistant to both Rumsfeld and Deputy Secretary of Defense Paul Wolfowitz. Mora explained to Duran that the abuses were contrary to American values and would likely have severe policy repercussions. Public support for the Global War on Terror would diminish. International condemnation was assured. Duran expressed serious concern and asked to be kept informed.

  On January 9, Mora confronted Haynes again. “Protect your client!” he warned. Even if Haynes didn’t care about torture, he had a responsibility to end interrogation policies that could threaten Rumsfeld’s tenure. If Rumsfeld fell, then even the presidency might be damaged.

  A few days afterward, I flew down to Gitmo for the meeting with Miller that I’d promised Mora. Miller’s office was up a long, winding hill overlooking the base in a large building that used to run signal intel operations in the mid twentieth century. I made my case, while Miller listened with his lips jutting forward. When I was done, he quickly answered: “If you want to be on the team, you got to wear the same jersey, hoo-ah.”